Human Rights Group Protests Capital Punishment In Nation’s Capital

By Courtney Costello-Talk Radio News Service

The Abolitionist Action Committee, a human rights organization promoting nonviolent alternatives to the death penalty, have been staging a hunger strike for the past 4 days to mark the anniversaries of two very different landmark rulings over execution, Furman v. Georgia and Gregg v. Georgia.

In 1972 the Supreme Court ruled in Furman v. Georgia that the death penalty violated the 8th amendment’s ban on cruel and unusual punishment. 4 years later in Gregg v. Georgia the court ruled that provisions made by individual states can create situations in which the death penalty is constitutional.

“There are tens of thousands of people passing by: commuters going to work, tourists from around the world. We are able to get the message of abolition of capital punishment to them, because it’s something that’s a part of all of our lives,” said vigil organizer Scott Langley.

Vigil attendee Scott Bass of North Carolina recounted walking over 312 miles in 17 days in an effort to reach out to people about the death penalty’s effects on the families of homicide victims and families of those on death row.

“We were walking for restorative justice rather than the death penalty,” said Bass.

Organizers claimed that over 100 people have attended since the vigil’s start. They will be able to break their fast at midnight Friday.

“The death penalty maybe slowly but surely crumbling in this country”, said Langley.

Fifteen states have abolished the death penalty, while many other states are questioning the practice.

The Abolitionist Action Committee has held the ‘Fast & Vigil to Abolish the Death Penalty’ for 16 years.

Death-row Inmate's "Mental Retardation" To Be Re-examined

The Supreme Court Monday heard arguments from an Ohio man who claims that he has already been found to be mentally retarded, a status which renders him ineligible for the death penalty. The state of Ohio is trying to reopen examination into his mental capacity so that it can carry out his death sentence.

In 1992 an Ohio jury convicted Michael Bies of beating and murder of a 10-year-old boy near Cincinnati. The jury sentenced Bies to death, even though he had an IQ of about 68. Doctors generally define mental retardation as having an IQ below 70, having significant limitations in two or more areas of adaptive behavior, and presenting evidence that the limitations became apparent before the age of 18. Bies filed several appeals to higher courts, and each found that Bies's borderline mental retardation was a mitigating factor, but aggravating factors made the death penalty still appropriate.

In 2002 the U.S. Supreme Court ruled in Atkins v. Virginia that the 8th Amendment's prohibition against "cruel and unusual punishment" prevented states from executing the mentally retarded.

Yesterday, Bies brought his case to the Supreme Court, arguing that because the appeals courts had earlier said he was mentally retarded, the state could not revisit that issue. Ohio wants to hold a hearing to show that he is not mentally retarded, and therefore that he is eligible for the death penalty.

Ohio's Solicitor General, Benjamin Mizer, argued that lower courts had not yet considered factors other than Bies's IQ, so a new hearing should be held to examine Bies's mental state for Atkins purposes. Further, Mizer argued that the lower courts had examined Bies's mental capacity as part of a variety of factors, so the intermediate determination that Bies is mentally retarded should not be considered binding.

Justices Souter and Ginsburg are normally the most liberal of their colleagues on the bench. Both drove home the point that only if a court's conclusion on a single point is "necessary" to its final decision can that intermediate conclusion be binding on later courts. If the court could have sentenced Bies to death without concluding he was mentally retarded, the conclusion on his mental capacity was not necessary to the final decision.

The Court will issue a ruling before its term ends in early June.

The Execution of José Medellin

Tonight Texas put José Medellin to death. Medellin, a Mexican national, was arrested in 1993 and charged with the rape and murder of two 14- and 16-year-old girls. Normally a foreign national would at this point be given an opportunity to speak with his home country's consulate, pursuant to the Vienna Convention, but Medellin was never informed of this right. Instead, he was convicted and sentenced to death. Only then did he learn of his Vienna Convention rights. He took his case to the International Court of Justice, who ruled that Texas should reconsider his case and that of 50 other Mexican nationals on death row. Texas refused, even though the Bush administration ordered it to reconsider.

That's right: even the death-penalty-friendly, international-law-ignoring Bush administration disagreed with Texas on this one.

Medellin took his case to the Supreme Court, asking it to enforce the ICJ's decision. On March 25 of this year, the Supreme Court refused, saying that Congress hadn't passed legislation making ICJ rulings binding on states. In July of this year, Congressman Berman (D-Calif.) introduced a bill that would have allowed people to go to court to have their Vienna Convention rights enforced. It never even got a committee hearing.

Last week and today, Medellin's lawyers asked the Supreme Court to issue an emergency stay of execution. Normally the Supreme Court summarily rejects these requests, but tonight it issued an unsigned opinion saying Congress and the Department of Justice had had a chance to act and didn't, so the execution could continue. Four Justices (Stevens, Souter, Ginsburg, and Breyer) wrote dissents. Justice Stevens's dissent is particularly notable, since he had agreed with the majority of the Court when they heard the case. In his dissent tonight, Stevens wrote that there are serious foreign policy implications of this action, so he'd like to delay the execution and hear the federal government's opinion on that. Justices Souter and Ginsburg said largely the same thing, and Justice Breyer wrote a longer dissent, giving 6 other reasons the execution should be delayed.

According to the Houston Chronicle, "Medellin was pronounced dead at 9:57 p.m. [Central time], nine minutes after the lethal dose was administered."

Supreme Court: $2.5 billion too much for Exxon Valdez; death penalty not allowed for child rape

Exxon v. Baker (5–3 that $2.5 billion was too high a damage award): After the Exxon Valdez oil spill, Exxon paid $3 billion in cleanup fees and fines. Alaskan fishermen brought this case for compensatory damages due to their lost revenue from the damaged fishing areas. They also asked for punitive damages. The jury awarded $287 million in compensatory damages to some of the fishermen (some others had already settled their claims), and it assessed $5,000 in punitive damages against captain Hazelwood and $5 billion against Exxon (an appeals court later halved the amount awarded to Exxon, to $2.5 billion). Exxon made three arguments in this case: that it should not face punitive damages for Hazelwood's actions, that these kinds of events were regulated by the Clean Water Act and no other damages were appropriate, and that the damages award was too large. Justice Alito sat out the case, and the Justices split 4–4 on the question of whether Exxon can be fined for Hazelwood's actions, so the 9th Circuit's decision that Exxon can be held responsible stands. The Court found 8-0 that the Clean Water Act does not prohibit this kind of action. Finally, the Court found 5-3 that the damage award was excessive. Justice Souter, writing for the majority, went through a long historical analysis and found that an appropriate ratio of punitive damages to compensatory damages in maritime cases is 1:1.. Justices Souter, Roberts, Scalia, Kennedy, and Thomas agreed on this point. Justices Stevens and Ginsburg each wrote separately to say that they thought Congress should decide the question of punitive damages in the maritime field, and until then the $2.5 billion award should be left standing. Justice Breyer wrote separately to say that he thought the excessiveness of the recklessness here was enough to justify the award.

Kennedy v. Louisiana (5–4 that death penalty is unconstitutional in cases of child rape): Kennedy raped his 8-year-old stepdaughter. He was sentenced to death. He brought suit, claiming the death penalty for child rape violated the 8th Amendment prohibition against cruel and unusual punishment. In announcing the opinion, Justice Kennedy said that the 8th Amendment must be interpreted “not by the standards that prevailed when the 8th Amendment was adopted” but by evolving standards of decency. Noting the Court's prior decisions of Roper v. Simmons (2005, invalidating the death penalty for minors), Atkins v. Virginia (2002, invalidating the death penalty for mentally retarded), and Coker v. Georgia (1977, invalidating the death penalty for adult rape), Justice Kennedy summarized the legal situation in the states: 6 U.S. states allow the death penalty for child rape, while 44 states and the federal government do not allow it. There has been no execution for child or adult rape since 1964. Finally, there are only 2 people on death row in the United States for crimes other than homicide (the petitioner is one of them). In comparison, there were 5,702 child rapes in 2005, almost twice as many as homicides, so that number of people would be opened to the death penalty if the law were upheld. Justice Kennedy, joined by Justices Stevens, Souter, Ginsburg, and Breyer, voted to invalidate the law. Justice Alito, joined by Justices Roberts, Scalia, and Thomas, dissented, arguing that the Coker case led states to believe laws like this would be struck down and dissuaded them from passing them, and thus their scarcity is not reflective of a real consensus of opinion. Notably, Justice Alito did not spend much time discussing whether it is proper to examine the 8th Amendment under “standards that prevailed when the 8th Amendment was adopted,” yet Justices Scalia and Thomas joined his opinion in full without writing separate opinions.

Giles v. California (6–3 out-of-court statements by a murder victim are not necessarily allowed as evidence in the murder trial): Giles shot and killed his girlfriend. At trial, he argued self defense. To rebut that claim, the prosecution sought to bring into evidence statements the girlfriend had made about prior violence against her by Giles. Giles argued that the 6th Amendment gave him a right to cross examine her, but since she couldn't be cross examined the statements couldn't be used. California said that it was Giles's fault that she was unavailable, so he had no right to complain. The Supreme Court, in an opinion by Justice Scalia, found that the 6th Amendment right to confrontation did not have an exception for cases like there; there is an exception if someone makes a witness unavailable intentionally so that the person cannot testify, but California's argument against Giles was broader than that. Justices Scalia, Roberts, Souter, Thomas, Ginsburg, and Alito joined that opinion, arguing based on historical cases that an exception to the confrontation clause does not exist. Justice Thomas wrote separately to argue that statements to a police officer (like these were) should be admissible anyway, but he joined the majority because he agreed that Giles's actions were not reasons to make the statements admissible. Justice Alito wrote separately, making an argument similar to Justice Thomas's. Justice Souter, joined by Justice Ginsburg, wrote separately to say that they were not convinced by historical cases but by the need to avoid the circularity of having a court find that a defendant killed a victim in order to have evidence admitted in the defendant's murder trial; if the court finds that the defendant killed, what question is left for the jury? Justice Breyer, joined by Justices Stevens and Kennedy, dissented, arguing that historical cases found that an exception applies and the evidence should be admitted.

Plains Commerce Bank v. Long Family Land (9–0 saying Indian Tribal Courts can't hear cases over non-indians selling reservation land to non-indians): The bank owned some land on an indian reservation (sale of indian land was allowed for a short time by Congress). It sold that land to a non-indian. The Longs had previously leased that land with an option to buy, and they claimed the terms offered to the new buyers were better than the ones they had gotten. They brought their claim before an indian Tribal Court. Tribal Courts generally do not have jurisdiction over non-indians, and the only exceptions are when the case involves a consensual relationship involving an indian (such as a lease or contract) and when the case deals with reservation land and would dramatically affect the tribe. In this case, Justice Roberts wrote for the Court, the Tribal Court was hearing a case about a non-indian bank selling non-indian-owned land to a non-indian, so the Tribal Court had no jurisdiction. He said the Longs are free to pursue their discrimination claims in federal court. The decision of the Court was unanimous, but 4 Justices (Ginsburg, Stevens, Souter, Breyer) would have let the non-indian keep the land while still allowing the Tribal Court to fine the bank $750,000 for the discrimination.

The Court announced that it will release the remaining opinions from this term tomorrow, Thursday, June 26.

Supreme Court rules lethal injection not "cruel and unusual"

Chief Justice Roberts (who got Justices Kennedy and Alito to agree, while no other opinion was joined by more than one other Justice) says that a method of execution is only unconsitutional if there is a "substantial risk of serious harm". Here there is a risk, but it is not substantial. The challengers did show that there are ways the injection procedure could be administered improperly, causing severe pain, but they did not establish that the risk was common. Existence of safe alternative execution methods doesn't help, either, especially since the proposed alternatives are untested; no one could say for certain that the alternatives would be significantly better.

Justice Stevens has a long opinion discussing the death penalty and how it's changed over time. He concludes, however, that the Supreme Court's prior holdings establish that the death penalty is constitutional, and he therefore holds that lethal injection is constitutional.

Justice Scalia criticizes Justice Stevens's opinion, saying none of what he says has anything to do with the text of the Constitution.

Justice Thomas, joined by Scalia, says Roberts's opinion looking for "substantial risk of severe harm" has no basis in the text of the Constitution.

Justice Breyer doubts studies showing lethal injection causes pain and doubts availability of better alternatives.